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  • Print publication year: 2020
  • Online publication date: June 2020

12 - Judicial Abolition of the American Death Penalty under the Eighth Amendment: The Most Likely Path

from Part III - The Future of the Eighth Amendment


Over the past fifty years, the death penalty has rapidly declined around the world. In 1965, only twenty-five countries were in the abolitionist camp. By 2018, 106 countries had legally abolished the death penalty for all crimes, and another thirty-six countries were deemed “de facto” abolitionist by Amnesty International (reflected in part by not carrying out any executions over the past ten years). The magnitude of the shift from majority retentionist to majority abolitionist jurisdictions does not capture the depth of the world’s turn away from the death penalty, what is fairly characterized as a true “global movement toward the universal abolition of capital punishment.” During this turn, countries have increasingly viewed the death penalty not as a local issue of criminal justice policy but rather as an issue of fundamental human rights, with an imperative to end the practice through international advocacy and treaties. During this period, the United States came quite close to being on the early side of this global movement, having experienced an informal moratorium on executions for almost ten years (June 1967–January 1977), followed by what many thought at the time was the end of the American death penalty — the Supreme Court’s invalidation of prevailing capital statutes in Furman v. Georgia 1972. But state legislatures reasserted their commitment to the death penalty in response to Furman, the Court affirmed the basic constitutionality of the death penalty in 1976, executions resumed in 1977, and the United States emerged as one of the world’s leading executioners by the mid-1990s. The revitalization of the American death penalty, coinciding as it did with the marked decline of capital punishment in the rest of the world, led many to wonder what accounted for American exceptionalism — its emergence as the sole developed Western democracy with both the death penalty on the books and active execution chambers.